Answer to Debt Collection Lawsuit (with FDCPA Affirmative Defenses) - Texas

IN THE [____________] COURT OF [____________] COUNTY, TEXAS

Cause No. [____________]

DEFENDANT'S ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES

Filed Pursuant to Tex. R. Civ. P. 92 and 94

COMES NOW the Defendant, [____________] ("Defendant"), appearing [☐ pro se / ☐ by and through undersigned counsel], and files this Original Answer to the petition of Plaintiff, [____________] ("Plaintiff"), and respectfully shows the Court as follows:

I. PRELIMINARY STATEMENT AND RESERVATION OF RIGHTS

1. Defendant files this Original Answer within the time prescribed by Tex. R. Civ. P. 99(b) — by 10:00 a.m. on the Monday next after the expiration of twenty (20) days after the date Defendant was served. Defendant reserves all rights, defenses, special exceptions, and objections available under the Texas Rules of Civil Procedure.

2. By filing this Answer, Defendant does not admit that Plaintiff has stated a cause of action, that Plaintiff owns or has standing to sue upon the alleged debt, or that the amount claimed is correct. Defendant expressly preserves the right to file special exceptions under Tex. R. Civ. P. 91 and verified pleas under Tex. R. Civ. P. 93.

3. Defendant does not have possession of the underlying account documents and demands that Plaintiff prove, by a preponderance of the evidence, each element of its claim, including the existence, ownership, amount, and enforceability of the alleged debt.

II. GENERAL DENIAL

4. Pursuant to Tex. R. Civ. P. 92, Defendant enters a general denial of each and every, all and singular, the allegations contained in Plaintiff's petition, and demands strict proof thereof by a preponderance of the evidence as required by the laws of the State of Texas.

III. VERIFIED DENIAL (SWORN ACCOUNT)

5. To the extent Plaintiff sues on a sworn account under Tex. R. Civ. P. 185, Defendant files the following verified denial under Tex. R. Civ. P. 93(10): Defendant denies, under oath, that the account that is the foundation of Plaintiff's claim is just and true, that it is due, and that all just and lawful offsets, payments, and credits have been allowed. (See verification below.)

IV. RESPONSES TO THE NUMBERED ALLEGATIONS (OPTIONAL)

6. Paragraph [____] of the Petition: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation and therefore denies it.

7. Paragraph [____] of the Petition: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation and therefore denies it.

8. Paragraph [____] of the Petition: [____________]
   ☐ Admitted ☐ Denied; strict proof demanded ☐ Defendant is without knowledge or information sufficient to form a belief as to the truth of this allegation and therefore denies it.

V. AFFIRMATIVE DEFENSES

Without waiving the foregoing general denial, and in the alternative if necessary, Defendant affirmatively pleads the defenses set forth below as authorized by Tex. R. Civ. P. 94, and expressly reserves the right to amend as discovery proceeds. Defendant should select only those defenses supported by the facts; pleading a clearly inapplicable defense may be subject to Tex. R. Civ. P. 13 / Tex. Civ. Prac. & Rem. Code ch. 9–10 sanctions.

☐ First Defense — Statute of Limitations. Plaintiff's claim is barred, in whole or in part, by the four-year statute of limitations applicable to a debt, contract, or account in Texas. Tex. Civ. Prac. & Rem. Code § 16.004 (debt/contract); see also § 16.051 (residual four-year period). The alleged debt accrued (generally upon the date of the last payment or charge-off) more than four years before this suit was filed, and the claim is time-barred.

☐ Second Defense — Lack of Standing; Failure to Prove Ownership and Chain of Assignment. Plaintiff is not the original creditor and has failed to plead or prove that it owns the alleged debt. Plaintiff must establish a complete, unbroken chain of assignment from the original creditor to Plaintiff — every bill of sale and assignment specifically identifying Defendant's account. Absent such proof, Plaintiff is not the real party in interest and lacks capacity to recover. Tex. R. Civ. P. 93(1), (2).

☐ Third Defense — Defect in Pleading / No Cause of Action (Special Exceptions). Plaintiff's petition fails to plead facts sufficient to state a cause of action, fails to attach a copy of the written instrument sued upon, and/or fails to itemize the amount claimed. Defendant excepts to the petition under Tex. R. Civ. P. 91 and requests that Plaintiff be ordered to replead.

☐ Fourth Defense — FDCPA Violations; Failure to Validate; Time-Barred Suit. Plaintiff and/or its predecessors are "debt collectors" subject to the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and failed to provide the validation notice and verification required by 15 U.S.C. § 1692g, and/or used false, deceptive, abusive, or unfair means in violation of 15 U.S.C. §§ 1692d, 1692e, and 1692f — including filing or threatening suit on a time-barred or unverified debt.

☐ Fifth Defense — Plaintiff Failed to File the Required Surety Bond (Texas Debt Collection Act). Plaintiff and/or its agents are "third-party debt collectors" under the Texas Debt Collection Act, Tex. Fin. Code ch. 392, and may not engage in debt collection in Texas unless they have obtained and filed with the Secretary of State a $10,000 surety bond as required by Tex. Fin. Code § 392.101. Plaintiff has failed to plead or prove compliance. Engaging in debt collection without the required bond is a violation of ch. 392. [Verify the plaintiff's bond status using the Secretary of State debt-collector search before relying on this defense.]

☐ Sixth Defense — Payment, Accord and Satisfaction, Release, Discharge. The alleged debt has been paid, satisfied, settled, released, discharged (including by discharge in bankruptcy), or otherwise extinguished, in whole or in part. Tex. R. Civ. P. 94.

☐ Seventh Defense — No Account Stated; No Agreement to the Balance. Defendant never received, reviewed, or assented to the balance alleged, and never agreed that the stated sum was a true and correct statement of the account. The elements of an account stated are not satisfied.

☐ Eighth Defense — Statute of Frauds. To the extent Plaintiff relies on an agreement required to be in writing, the claim is barred by the Statute of Frauds, Tex. Bus. & Com. Code § 26.01.

☐ Ninth Defense — Erroneous or Unauthorized Amount; Unauthorized Fees; Usury. The amount claimed is incorrect, inflated, or includes interest, fees, or charges not authorized by any agreement, that are unconscionable, or that are usurious. Plaintiff must itemize and substantiate every component of the amount demanded.

☐ Tenth Defense — Defective Service / Lack of Jurisdiction. Service of process was insufficient or defective, and/or this Court lacks personal jurisdiction over Defendant or this is an improper venue. Defendant pleads these matters by verified denial where required under Tex. R. Civ. P. 93.

☐ Eleventh Defense — Failure to Mitigate. Plaintiff and/or its predecessors failed to take reasonable steps to mitigate the damages alleged.

☐ Twelfth Defense — Hearsay; Lack of Foundation for Account Records. Plaintiff's account records, affidavits, and computer printouts are inadmissible hearsay and lack the foundation required for the business-records exception (Tex. R. Evid. 803(6), 902(10)). Plaintiff cannot establish the records through a witness with personal knowledge of the original creditor's record-keeping practices, and "robo-signed" affidavits are insufficient.

☐ Thirteenth Defense — Reservation of Right to Amend. Defendant reserves the right to assert additional affirmative defenses, special exceptions, counterclaims, cross-claims, or third-party claims that become known through investigation or discovery, consistent with Tex. R. Civ. P. 63 and 94.

VI. DEMAND FOR DOCUMENTATION AND STRICT PROOF

9. Defendant demands that, before judgment, Plaintiff produce admissible evidence of each of the following:

a. The signed account agreement, cardholder agreement, or contract under which the alleged debt arose, together with all amendments and change-of-terms notices;

b. A complete set of monthly account statements from inception through charge-off, evidencing the transactions, charges, payments, interest, and fees that make up the balance claimed;

c. An itemization of the principal, interest, fees, and other charges comprising the amount demanded, with the contractual or statutory authority for each charge;

d. The complete chain of title to the alleged debt — every bill of sale, assignment, and account-transfer document from the original creditor through each intermediate owner to Plaintiff — together with the specific account-level data showing Defendant's account was among those transferred; and

e. Proof that Plaintiff is the present owner and real party in interest entitled to enforce the alleged debt, and (if a third-party debt collector) proof of the surety bond required by Tex. Fin. Code § 392.101.

VII. NOTICE OF POTENTIAL FDCPA / TDCA COUNTERCLAIM

10. Defendant gives notice that the facts of this matter may give rise to a counterclaim against Plaintiff and/or its predecessors under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., including actual damages, statutory damages up to $1,000, and attorney's fees and costs under 15 U.S.C. § 1692k, and/or under the Texas Debt Collection Act, Tex. Fin. Code ch. 392 (which is tied to the Texas Deceptive Trade Practices Act, Tex. Bus. & Com. Code § 17.41 et seq.), for conduct such as suing on a time-barred or unverified debt, failing to provide § 1692g validation, collecting without the required bond, or using false, deceptive, or unfair means to collect.

☐ Defendant asserts no counterclaim at this time and reserves all rights.
☐ Defendant asserts the FDCPA/TDCA counterclaim set forth in the attached/following pleading under Tex. R. Civ. P. 97.

VIII. PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant prays that Plaintiff take nothing by reason of its suit, that Defendant be discharged with costs, that the Court grant any counterclaim relief asserted herein, and that Defendant recover such other and further relief, at law or in equity, to which Defendant may show itself justly entitled.

IX. JURY DEMAND

☐ Yes — Defendant demands a trial by jury on all issues so triable and will pay the jury fee required by Tex. R. Civ. P. 216.

☐ No — Defendant does not demand a jury trial at this time.

X. SIGNATURE

Respectfully submitted this [____] day of [____________], 20[____].

/s/ [____________________________________]
[____________________________________]
☐ Defendant, pro se ☐ Attorney for Defendant
State Bar of Texas No. (if attorney): [____________]
[Street Address]
[City], Texas [____]
Telephone: ([____]) [____]-[________]
Email: [____________________________________]

XI. VERIFICATION / UNSWORN DECLARATION (REQUIRED IF DENYING A SWORN ACCOUNT)

My name is [____________]. My date of birth is [__/__/____], and my address is [____________]. I declare under penalty of perjury that the factual statements in the foregoing Answer, including the verified denial of the sworn account, are true and correct.

Executed in [____________] County, State of [____________], on the [____] day of [____________], 20[____].

/s/ [____________________________________]
[____________________________________], Declarant

XII. CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Defendant's Original Answer and Affirmative Defenses was served on Plaintiff's counsel of record (or on Plaintiff, if unrepresented) in accordance with Tex. R. Civ. P. 21 and 21a on the [____] day of [____________], 20[____], by the following method:

☐ Electronic service through the Texas eFileTexas.gov / electronic-filing manager (for represented parties)
☐ U.S. First-Class Mail, postage prepaid
☐ Certified Mail, Return Receipt Requested
☐ Hand Delivery / Commercial Delivery Service
☐ Email (where permitted under Rule 21a)
☐ Fax

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

TEXAS PRACTICE NOTES

• Answer deadline: In District and County Courts, the Original Answer is due "by 10:00 a.m. on the Monday next after the expiration of twenty (20) days" after service. Tex. R. Civ. P. 99(b). In Justice Court, the deadline is generally the 14th day after service under Tex. R. Civ. P. 502.5. Calendar immediately; a default judgment may be entered if no answer is filed.
• General denial: A Tex. R. Civ. P. 92 general denial puts Plaintiff to its proof on all elements and is usually sufficient by itself.
• Sworn account trap: If Plaintiff pleads a sworn account under Tex. R. Civ. P. 185, you MUST file a verified denial under Tex. R. Civ. P. 93(10), or the account becomes prima facie proof. Note that credit-card debt is frequently held NOT to qualify as a true sworn account.
• Statute of limitations: Four years for debt/contract/account. Tex. Civ. Prac. & Rem. Code § 16.004; residual four-year period § 16.051. Under Tex. Fin. Code § 392.307, payment or acknowledgment does not revive an expired period, and debt buyers may not sue on time-barred debt.
• Licensing / bond: Texas does not license third-party debt collectors, but they must file a $10,000 surety bond with the Secretary of State before collecting. Tex. Fin. Code § 392.101. Confirm bond status via the Secretary of State's debt-collector search.
• TDCA / DTPA: The Texas Debt Collection Act (Tex. Fin. Code ch. 392) is enforceable and a violation is also a DTPA violation (Tex. Fin. Code § 392.404), supporting damages and attorney's fees. The TDCA has no express limitations period; courts commonly apply a two-year period (cf. Tex. Bus. & Com. Code § 17.565 for DTPA claims) — verify before relying.
• Compulsory counterclaim: An FDCPA/TDCA claim arising from collection of this debt may be compulsory under Tex. R. Civ. P. 97(a).

Sources and References

• Texas Rules of Civil Procedure (incl. 92, 93, 94, 99, 185, 502.5): https://www.txcourts.gov/rules-forms/rules-standards/
• Tex. R. Civ. P. 99 (answer deadline) — TexasLawHelp deadline guidance: https://texaslawhelp.org/tools/deadline-calculator
• Tex. Civ. Prac. & Rem. Code ch. 16 (limitations): https://statutes.capitol.texas.gov/Docs/CP/htm/CP.16.htm
• Tex. Fin. Code ch. 392 (Texas Debt Collection Act): https://statutes.capitol.texas.gov/Docs/FI/htm/FI.392.htm
• Tex. Fin. Code § 392.101 (bond): https://law.justia.com/codes/texas/finance-code/title-5/chapter-392/subchapter-b/section-392-101/
• Tex. Fin. Code § 392.307 (time-barred debt; debt buyers): https://statutes.capitol.texas.gov/Docs/FI/htm/FI.392.htm#392.307
• Secretary of State — Third-Party Debt Collector bond search & FAQ: https://www.sos.state.tx.us/statdoc/faqs2900.shtml
• Texas State Law Library — Time-Barred Debts: https://guides.sll.texas.gov/debt-collection/time-barred-debts
• Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.: https://www.ftc.gov/legal-library/browse/rules/fair-debt-collection-practices-act-text
• CFPB — time-barred debt: https://www.consumerfinance.gov/ask-cfpb/can-debt-collectors-collect-a-debt-thats-several-years-old-en-1423/